Law Written By Experts Is No Law

In a discussion on jurisprudence and hate speech legislation on Facebook, commentator David Benson wrote:

[The arbitrary nature of defining hate speech] why I didn’t trust a novice like myself to come up with the wording. I DO, however, think this issue has gotten to the point where some steps need to be taken.

To understand the difficulty with this statement, we must first understand what, exactly, law’s purpose is.

The purpose of law is to govern human behavior.  This purpose appears to me to be so self-evident and to hardly require evidence.  However, I will explain further.  Any form of law, whether it be issues of justice (ie “don’t mess with other people’s stuff,”) or matters of ethics, seeks to govern human behavior: how we act in given situations, how we interact with each other, how we resolve conflicts, etc.  For example, there is law regarding behavior at a funeral: it is proper to cry or be sad/somber.  To laugh or be merry is generally considered inappropriate.  This is an example of an ethical law governing human behavior.

If the purpose of law is to govern human behavior, it follows that law should be simple.  Complex or complicated law cannot govern as effectively as simple law.  With simple law, it is easy to determine when violations happen, and more importantly, it is easy to determine how to behave.  If law is complicated, then such determinations are far more difficult to make.  And this matter is doubly important for matters of jurisprudence and legislation, where breaking the rule leads to a loss of liberty.  This is why the rules of mere justice, the fundamental arena of jurisprudence and legislation, are the most simple.

Which brings us back to David’s comment I highlighted at the beginning.  If legislation defining hate speech cannot be defined by novices, then it is destined to be bad legislation.  If it cannot be defined by novices, it cannot be understood by novices, and thus it cannot be practiced by novices.  This would leave a wide area of grey between what is punishable and what is not, determined by experts but not by novices.  And, since the vast majority of people are novices in matters of legislation and jurisprudence, such complicated law would naturally harm the vast majority of people, even if it exists for nominally virtuous reasons.

 

25 thoughts on “Law Written By Experts Is No Law

  1. By describing myself as a “novice” I was deferring to those with greater understanding and experience with the law than myself. That doesn’t mean what they write would automatically be complex and confusing to the layman. It means that if done properly, the wording should cover the necessary legal bases while maintaining its clarity, not just to judges who would be ruling on cases, but also those like myself who I agree need to understand the laws they are required to follow.

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    • David

      If you defer to experts, how do you know the laws they write are ones you believe are just and with which you believe you should comply? Surely experts don’t know better than you do how you would like to be treated and how to treat others. And surely you wouldn’t comply with an unjust law.

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  2. In a world in which there are supposedly 75 genders, I doubt very much that there will be agreement on the definition of hate speech.

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  3. The law loves to be objective while also being in love with the ‘reasonable person’ standard!@! This post is along the lines of “Well, how exactly do we define…..” in this instance hate speech. Likewise the same could be said of ‘obscenity’ and famously Justice Stewart wrote regarding the definition of ‘obscenity’ that he might have difficulty defining it, but he would know it when he saw it:

    “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

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  4. “If it cannot be defined by novices, it cannot be understood by novices, and thus it cannot be practiced by novices.”

    “Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

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  5. In general response to the comments above, I wanted to address a couple points. First, with respect to hate speech laws, why try to reinvent the wheel? Countries like Great Britain and Germany have had effective hate speech laws in place for decades so why not use them as a basis for our own? They had a very good reason (and history) to put them in place and now so do we.
    Secondly, I wanted to respond to Ron H’s question about “deferring to the experts” and how we should respond if we feel certain laws are “unjust.” When we vote, we are, in essence, deferring to others to represent our interests in creating and managing legislation (laws). That doesn’t mean we will always get what we want because everyone else gets to elect representatives too and their interests might not agree with ours. What we end up up with is an aggregate of views represented in Congress with the majority defining what laws are written and how they are written. Ideally (which isn’t happening now) the minority can exert influence through negotiation and compromise but the majority ultimately controls the overall direction. Once a law is in place, though, we are required to follow it. Just because we disagree with it, or feel it is “unjust,” that doesn’t give us the right to ignore it. If enough people feel the same way, it will eventually be changed by virtue of who they elect. If they don’t, it won’t. For better or worse, that’s the system within which we live and we must accept its outcomes.

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    • David

      You have just defined a system of mob rule. Others will tell you what you may or may not do, and what you will or will not do. Justice isn’t even a necessary thing in such a system. Is that the type of system in which you prefer to live?

      In another world, long ago and far way, Jews were required *by law* to wear an identifying badge so they could be easily identified and segregated when the authorities deemed it necessary. Would you claim that since that was the law, everyone was bound by a duty to follow it until such time as enough people elected representatives to change the law? That appears to be what you’re saying here, but hopefully you will clarify.

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    • David

      I guess I’m asking, when is “the law” valid and when is it not? What elements are required to make a law the law, instead of just directives from those in charge?

      Legislation is just ‘pronouncements from above’ by those you believe you have chosen to make such pronouncements. Are these pronouncements always “law”? or do they need to meet some kind of objective standards?

      Would you have complied with the Fugitive Slave Act of 1850 which required citizens of the US to cooperate in the capture and return of runaway slaves to their legal owners?

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      • Ron,
        Seems to me you consider mob rule and majority rule to be the same thing. For me, a fundamental question is when does a majority become a mob? Perhaps after it’s been worked into a frenzy through years and years of systematic, single-source fear and anger propaganda? One might argue that that is exactly what happened in Germany in the 1930’s which ultimately resulted in Hitler being democratically elected. Vivid memories of that experience are why hate speech laws were created in those countries after the war and also why they need to be seriously considered in the United States.
        Even though I believe a large portion of our population was similarly manipulated into bringing a white nationalist government to power, I still have faith that the system has the ability to correct itself through normal democratic processes. You sound to me like someone who doesn’t – someone who would be ok with more radical/revolutionary approaches to change when you don’t agree with what’s in place. Yes, there may have been moments in time where such drastic actions were the only option but I don’t think we’re to that point. I also understand your point that each individual must weigh their own moral and ethical code against the laws they are required to follow, even if doing so risks consequences. As many have said, democracy isn’t always pretty but in my humble opinion, it works best when controlled by a rational and informed majority instead of an emotional and irrational mob.

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        • “Even though I believe a large portion of our population was similarly manipulated into bringing a white nationalist government to power…”

          A large portion of our population wasn’t smart enough to decide for themselves what was in their own best interest? Do you want more Trump? Because this attitude is how you get more Trump.

          Just sayin’.

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          • Something just happened in two states that voted for Clinton in the last presidential election that indicates a lack of support for Trump? I guess I shouldn’t be surprised.

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          • The distinction wasn’t because Clinton ended up winning those states anyway. The two biggest differences in the VA and NJ elections, which don’t bode well for not only the Trump types but also the Bernie types, were the margin of victory for moderate Democratic candidates and also the level of turnout.

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        • David

          Seems to me you consider mob rule and majority rule to be the same thing.

          I do.

          For me, a fundamental question is when does a majority become a mob?

          When that majority can force their will on otherwise peaceful people who don’t agree or who don’t wish to be part of the group. There is no need or frenzy or violence, only the ability of a group to use force against others if desired. Where did you ever get the notion that other people have a right to force you against your own will when you are peacefully minding your own business and then force you to pay for that interference in your life?

          Even though I believe a large portion of our population was similarly manipulated into bringing a white nationalist government to power,

          Do you mean Trump? Ii don’t see him as a white nationalist hero, but in any case, he was elected by about 20% of the people in the US. That means that 4 out of 5 people did NOT choose him. What kind of a system works against the interests of such a vast majority?

          You sound to me like someone who doesn’t – someone who would be ok with more radical/revolutionary approaches to change when you don’t agree with what’s in place.

          democracy isn’t always pretty but in my humble opinion, it works best when controlled by a rational and informed majority instead of an emotional and irrational mob.

          It isn’t rational to be well informed, as the likelihood of anyone’s individual vote making a difference in any election is so vanishingly small as to the time and effort to become informed a waste of time. Stay home and stay safe on election day. It’s more likely that you will be killed in auto accident on your way to the polls than that your single vote will make any difference.

          You didn’t answer my questions about obedience to the law, or what makes a law valid.

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          • “It isn’t rational to be well informed…”

            I intended to be, once I was eligible to vote. Then the voter guide (similar to this one) came in the mail:

            http://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete-vig.pdf

            After muddling through a portion, I came to the conclusion that… A) a lot of it still wasn’t clear and B) the chance of my vote being the deciding one was most unlikely. That voter guide went into the trash and I never opened another one.

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          • Ron H.
            A law is valid once it’s been approved by the legislature (state of federal) and signed by the President or Governor. We should be obedient to the law, but I’m willing to concede that in some cases a person must weigh their personal ethics and moral code against the potential consequences of ignoring it.
            Actually, a state delegate here in VA was just determined by random drawing because the vote (and recount) ended in an exact tie. If one more person had voted either way, the outcome would have been different. That delegate also determined the overall party majority so votes really do count and the higher the turnout, the more representative our government will be. Lower turnout has the opposite effect.
            “When that majority can force their will on otherwise peaceful people who don’t agree or who don’t wish to be part of the group.”
            I’m sorry but as a U.S. citizen (I’m assuming) you are, by default, part of the group. I’m also curious; if you’re against the fundamental democratic principle of majority rule, what type of system do you think would work better for 300 million people? Can you imagine what would happen with a group that size if there weren’t any rules – or people were allowed to pick and choose the rules they wanted to follow? Personally, I view anarchy to be just as bad, if not worse, than the rule of an angry and irrational mob. In any large group, there will always be outliers, and while no system or set of laws will make everyone happy, once a population reaches a certain size, some level of structure, rules and governance must exist.
            On whether a voter is rational and informed, I’m referring to being generally educated and knowledgeable in government and civics (an education requirement) and also objectively informed of the candidates’ views and positions on certain issues. (a requirement of the press) I believe our education system and press have failed us in both respects but that’s a topic for a different thread. Truth is, these comments have also strayed pretty far from Jon’s original blog subject.

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          • Just Some Guy

            Yeah, voter guides aren’t much help, especially since the secretary of State gets to write the title of any measure. You are lucky to have learned that lesson early in life. Some of us spent years wasting time trying to become informed, only to find our vote was wasted anyway.

            I still vote on state and local spending measures, always voting no.

            “Would you like it if we took even more money out of your wallet?”

            NO!

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          • David

            It is sad that you don’t believe you and other individuals are capable of managing their own lives, and that someone else must be in charge of managing it for you. You describe yourself as an obedient little subject, not as a citizen. There’s a big difference, you know.

            It seems you are conflating “legal” with “moral and ethical” and they are not at all the same thing. You still haven’t answered my question about the Fugitive Slave Act of 1850. Congress passed that act and the President signed it. It was *The Law*. Do you believe ordinary citizens like you and me should have complied and assisted in the capture and return of runaway slaves to their legal owners?

            That’s an important question that gets to the heart of the issue we are discussing. You seem to believe “The Law” must be obeyed in all cases, and I’m asking if your sense of duty extends even to this level of blind obedience, despite the horrible moral implications involved in obeying the law in that case.

            If you can’t answer the question, there’s no point of continuing a discussion of whether or not our masters must always be obeyed.

            Truth is, these comments have also strayed pretty far from Jon’s original blog subject.

            Actually the questions I’m asking you are at the very heart of Jon’s blog subject, which is your belief that you are unable to make valid judgements for yourself, and must therefore rely on “experts” to do it for you.

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          • David

            Actually, a state delegate here in VA was just determined by random drawing because the vote (and recount) ended in an exact tie. If one more person had voted either way, the outcome would have been different. That delegate also determined the overall party majority so votes really do count and the higher the turnout, the more representative our government will be. Lower turnout has the opposite effect.

            This example shows that votes DO NOT count, as all that voting provided no result. The determination could have been made much more easily and cheaply by simply conducting a random drawing or coin toss to begin with.

            What you have demonstrated is that the people of Virginia were so evenly divided on this, that a random drawing was sufficient to impose the will of half the voters on the other half. Some system.

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          • I think these comments have gotten to the point where we are basically starting to repeat ourselves. Since we both pretty much understand where the other is coming from, I don’t think it’s really necessary to continue. Feel free to have the last word and enjoy the rest of your day. Signing off.

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          • And with that, David exits by using the “repetitive” excuse, and avoids answering the important questions or admitting he has no valid arguments to bring to the discussion.

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          • That’s too bad. I was hoping to find out how increasing voter participation leads to the government becoming more representative of the voting population. It was my understanding voter turnout in the USSR was fairly high, which would seem to contradict that point of view.

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          • Just

            That’s too bad. I was hoping to find out how increasing voter participation …

            Yeah, and in Iraq Saddam generally won reelection with 99% of the vote. But, you know … democracy.

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